Opinion
No. 15.
July 21, 1905.
APPEAL from an order of the Superior Court of Kern County denying a new trial. J. W. Mahon, Judge.
The facts are stated in the opinion of the court.
Laird Packard, for Appellants.
Reardan Whitaker, for Respondent.
Action for forcible entry and for forcible detainer. Judgment went for plaintiff. Defendants appeal from an order denying a new trial.
Plaintiff in its complaint alleges that on February 1, 1902, it was in peaceable and actual possession of the south half of the north half of section 28, township 11 north, range 23 west, San Bernardino Base and Meridian, Kern County, California; and was engaged in erecting upon said land a cabin. That on said date the defendants by force and violence entered on said premises, and in a forcible manner ejected plaintiff therefrom, tore down and destroyed the cabin, and carried away the materials used in its construction. As a second cause of action, plaintiff repeated all the matters stated in the first cause of action, and alleged further that defendants still forcibly keep and hold possession of said premises. The answer, in effect, denies all the material allegations of the complaint; and upon the trial the court found the allegations in the complaint to be true.
The principal contention of defendants on this appeal is, that the finding that plaintiff was in the peaceable possession of said premises at the date of the entry has no support in the evidence. There is some testimony tending to show the actual possession of plaintiff for the greater portion of one day. It is not made an essential in the statute that actual possession should have existed for any definite length of time. The mere fact of peaceable and quiet possession is all that is material for plaintiff to establish.
It is insisted further that there is no support in the testimony for the finding of the court that defendants, with strong hand and with force and violence, ejected plaintiff from the premises. There is ample testimony in the record to show that the servants and agents of plaintiff were by force driven off the premises by defendants' agents. Where one man who is armed with and flourishing a deadly weapon approaches another and directs him to vacate premises, supplementing the demand with the statement that "jumpers have been known to lose a leg," and the other, apprehending danger, vacates, there should be no difficulty in determining that such vacation was forcible, and with a strong hand.
It is further contended that the rulings of the court in admitting the deed to plaintiff of the premises was error. While it is true that in proceedings under the Forcible Entry Act neither title, right of possession, nor good faith on the part of plaintiff is essential to a maintenance of the action, yet it is difficult to see the prejudice which would result to the defendants by the proof of all or either of them.
Many other exceptions and objections were made as to the ruling of the court in the introduction of testimony, in none of which are we able to discover any prejudicial error.
The order denying a new trial is affirmed.
Gray, P. J., and Smith, J., concurred.